Big Time Music Producer Sues Artists For Defamation For Suggesting He Copies Their Songs

from the ah,-legal-fights dept

THREsq has a story about the quick, legal trigger finger of one Lukasz "Dr. Luke" Gottwald, who apparently has produced a bunch of pop hits from the likes of Britney Spears, Katy Perry, Ke$ha, Avril Lavigne and Kelly Clarkson. It seems that lots of people online have noticed that some of the songs sound similar to other songs, and as people do these days, they've created mashups showing the similarities. Dr. Luke has decided that the best strategy to take when certain artists have spoken out publicly about their beliefs that certain songs were copied is to sue them for defamation.

Now, I actually agree with Dr. Luke that many of these accusations are crazy:

"These days, anyone can put two songs up and make a mash-up by changing the key of this one and say, 'Oh, these songs are similar.' A lot of things are similar. But you don’t get sued for being similar. It needs to be the same thing. Almost doesn’t count. Close but no cigar. People are suing for close. There are standard chord progressions that everyone uses. There are plenty of songs that are really similar and they never sued each other. We are a very litigious society today. You can fall on the sidewalk and sue the city."

He's right. And, of course, there are lots of highly viral YouTube videos about similar general chord progressions in a ton of songs, such as the one about Pachelbel's Canon:

And yet... as much as I agree in general that the claims of copying (or more directly, of infringement) are overblown, the fact that he goes legal first with defamation claims really seems like a strategically questionable move. All it's doing is calling that much more attention to the allegations themselves and leading more people to wonder if there is actual copying going on. He could have easily stuck with the claim that lots of songs have the same chord progression and that's not infringement.

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Defamation as a type of IP law

Mike, not only that, but defamation (libel and slander) law protect "reputation rights," which are nothing but another type of IP right. IP traditionally includes patent, copyright, trademark and trade secret, and newer legislated rights like semiconductor maskwork protection, but it also ought to include reputation rights since it is based on the same flawed reasoning as copyright and patent: a reputation right is a right to a non-material thing--your "reputation," i.e. what others think about you--becaues you used labor to "create" it and it "has value"--the same flawed reasoning behind patent and copyright.

So, this guy here is using an IP right to attack someone for saying he violated their IP rights. Odd.

""By falsely claiming to Sony Music Label Group that ‘Tik Tok’ infringes ‘My Slushy’, these Defendants caused RCA/Jive… to demand indemnification based on a breach of warranty and representation solely as a result of these Defendants’ baseless claims of infringement. By these Defendants’ wrongful actions, Plaintiffs’ publishing income interest in ‘Tik Tok’ has been damaged.”"

Because I am sure that Sony wants to make sure that their profits are protected and that this lawsuit be paid out of his own pocket. So he files a defamation claim, so he can argue how he was hurt by the statement and avoid trying to get a Judge to figure out if there was infringement.

Maybe he was right...
The first thing we do, let's kill all the lawyers.
Henry The Sixth, Part 2 Act 4, scene 2

"By falsely claiming to Sony Music Label Group that ‘Tik Tok’ infringes ‘My Slushy’, these Defendants caused RCA/Jive… to demand indemnification based on a breach of warranty and representation solely as a result of these Defendants’ baseless claims of infringement. By these Defendants’ wrongful actions, Plaintiffs’ publishing income interest in ‘Tik Tok’ has been damaged.”

Reading that I get the feeling that this is about money directly not just reputation, it had consequences to him as it should have and he now goes after anyone who insinuates that he copied anything, and apparently he does it without asking for money just retractions.

What the guy tends to miss is that it often isn't just a chord progression that is important, but how it is played, inflection, etc.

While music has a limited number of tools, it also has an incredible number of variables. Any single instrument has it's notes, plus tempo, attack, release, etc. For guitar, you can ass "picked or strummed", as an example, plus the inflection and pace of those actions as well.

Then you add a second instrument, and you have X possiblities times X possiblities.

Then you add a voice, and things get really wild, because vocal patterns, inflection, and a ton of other things come into play.

Four cords, 2 instruments, and a singer has lead to (and will continue to lead to) plenty of new songs.

The sample video only shows that, if you delete all of the inflection parts, delete all of the differences, you can find similarities. It's not like there are a million different notes to work with, right?

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The sample video only shows that, if you delete all of the inflection parts, delete all of the differences, you can find similarities. It's not like there are a million different notes to work with, right?

And yet the trolls come in here and say it isn't music unless it is original. We stand on the backs of giants. There is nothing new under the sun...only modifications of existing content (or, what copyright maximalists call "derivatives".) I agree with the statement that a lot of this work is different from where it came from, but where do we draw the line. If we add two notes to a sample, it is derivative and not a good example, but if we add a couple different vocal patterns, inflection, etc., it is brand new and worth copyright protection. It is all so darn subjective.

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You have to understand, there are a lot of things in play here, there is no simple answer.

As an example, you have "style". You know, blues, rock, jazz, whatever. Most musical styles have hooks, have phrasing, have beats, whatever that defines they as a style. Often when you write a new song "in a style", you limit your choices as to what to play, what chord progressions to use, etc.

However, I do think there is a big difference in "playing something in a blues style" and "sampling something in a blues style". Because even if the results are very similar, only one contains the new players inflections, tonality, and the like.

Sampling is the easy way out too often, it's more about a sound and less about pure originality. It's why in the end the line is drawn pretty simple: If you use the performance of someone else, you need permission / license. If you use the song (words and music) written by someone, you need permission / license.

You have to remember too that there are many artists is in the music business who are only performers, they don't write their own music, they merely perform the songs written by others. In the R&B world, example, there are "producers" who only make beats, or who only make melodies. There are others who only write lyrics. Often a song is made up of beats from one, melody of another, and lyrics from a third, performed by session musicians or by the producers themselves, and combined to make a new song, sung by the "performer". It is the collaborative nature of modern music that can create it's own hell.

I am a musician who has played in bands for over 3 decades.I have around 6 albums of stuff out in various old school tape/vinyl/Cd formats.I am an original punk rocker from 1976.

My art does not have this issue.No one needs to sound alike or close as this post talks of.
And this post is talking of manufactured pop garbage music.RIAA KRAP !!! All that pop krap sounds the same.That is what those bozos push is bland mainstream corporate music.
What do you expect from Artists and Producers who sign with the RIAA.
My art is original and I guarnatee you it sounds like no one else.
go to www.bigmeathammer.com and click on the Audio/video Link.All music is free and at 256 - 320k MP3 for your convenience.

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Listen, mate: I love punk rock, but you've gotta be joking. To say that The Jam and The Clash and The Fall sound like no one else and that no other punk sounds like them is just laughable. Again: I love punk--real punk music. But punk, hardcore, whatever--it really can't be said that every good one of those bands is like 100% distinct or something. Does Lee Ving sound like Rollins? No. But is FEAR 100% distinguishable from Black Flag? No.

I think maybe some recognition of the inherent samenesses is needed. I mean, you say that your music is punk tock, right? Well, if it "sounds like no one else," then how can you claim a genre at all? I guess you could do it on ethos, but then you get folks saying stuff like "Johnny Cash was a punk rocker," which, while funny and arguable in a really wonky way, just isn't quite true.

"All it's doing is calling that much more attention to the allegations themselves and leading more people to wonder if there is actual copying going on.""

I don't think I agree with the presumption that the Streisand Effect really applies in a defamation case that has solid grounds.

Seems to me it's calling attention to both the allegations and his defense. Maybe I wouldn't have heard of either without the suit, but I'm not sure if that's worse for him than hearing both sides of the argument.

You do indeed get sued for being similar...and that's (part of) the problem.

"A lot of things are similar. But you don’t get sued for being similar. It needs to be the same thing. Almost doesn’t count."

I guess this attorney isn't very knowledgeable about the reality of today's overly restrictive copyright regime. George Harrison had to find out the hard way when we was successfully sued for copyright infringement over claims that "My Sweet Lord" was "similar" to "He's So Fine" (popularized by the Chiffons).

This is a case that is taught in many copyright classes in law school.